The regulations effectively cut funding for judicial review cases brought by individuals in receipt of legal aid. They provided that lawyers working for Claimants in a legally aided application for judicial review would only be guaranteed payment once a claim had been granted “permission”.2

There was widespread concern that the regulations would impact on vulnerable people dependent on legal aid, who would not be able to find lawyers willing or able to take on meritorious cases, and would adversely impact on access to justice.

To be lawful, regulations made under statute must be consistent with the purpose of the statute under which they are made. The Claimants argued, amongst other things, that the regulations were inconsistent with the statutory scheme which governs access to legal aid[4]. The Defendant Lord Chancellor argued that the regulations would incentivise legal aid providers to more rigorously examine the merits of a case before issuing proceedings, and, as a result, the regulations would “enhance” and make “more effective” the merits criteria in the statutory legal aid scheme.

Rejecting the Lord Chancellor’s arguments the Divisional Court observed that various events can occur in judicial review cases which are unforeseeable or outside the control of lawyers. The Court found that there was no rational connection between the effect of the regulations and its stated purpose [43], and that the reach of the regulations “extends well beyond those in which such a regulation could lawfully incentivise providers to a sharper focus on the merits test in the way described in the consultation papers” [52].

Accordingly, the Court found that the Lord Chancellor did not have the power to make such regulations.

This is the latest judgment in a series of cases concerned with civil legal aid reform in which Courts have found that the current Lord Chancellor has exceeded his powers or otherwise sought to act unlawfully.[5]

Polly Brendon, of PLP said:

"Our clients are heartened by this outcome, and urge the Lord Chancellor to accept the judgment of the Court and work positively with providers to maintain an effective legal aid scheme that meets Parliament’s intentions."

[2] The permission stage is a filter in judicial review claims. Research has demonstrated that many meritorious claims settle before a permission decision is made.

[3] The Public Law Project (PLP) is an independent, national legal charity which aims to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers.

[4] The governing statute is the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[5] See for example judgments relating to the Lord Chancellor’s guidance on the civil exceptional funding scheme R (Gudanaviciene and Ors v DLAC and Lord Chancellor) and R (Letts) v Lord Chancellor; or relating to the proposal to introduce a ‘residence test’ by secondary legislation R (PLP) v SSJ.